2.
This the common law does not allow, because it produces useless
prolixity, and always tends to confusion, and to the multiplication of
issues. Co. Litt. 304, a; Finch's Law, 393.; 3 Bl. Com. 311; Bac. Ab.
Pleas, K 1.
3.
Duplicity may be in the declaration, or the subsequent proceedings:
Duplicity in the declaration consists in joining, in one and the same
count, different grounds of action, of different natures, Cro. Car. 20;
or of the same nature, 2 Co. 4 a; 1 Saund. 58, n. 1; 2 Ventr. 198;
Steph. Pl. 266; to enforce only a single right of recovery.
4.
This is a fault in pleading, only because it tends to useless prolixity
and confusion, and is, therefore, only a fault in form. The rule
forbidding double pleading "extends," according to Lord Coke, "to pleas
perpetual or peremptory, and not to pleas dilatory; for in their time
and place a man may use divers of them." Co. Litt. 304, a. But by this
is not meant that any dilatory plea way be double, or, in other words,
that it way consist of different matters, or answers to one and the same
thing; but merely that, as there are several kinds or classes of
dilatory pleas, having distinct offices or effects, a defendant may use
"divers of them" successively, (each being in itself single,) in their
proper order. Steph. Pl. App. note 56.
5.
The inconveniences which were felt in consequence of this strictness
were remedied by the statute, 4 Ann. c. 16, s. 4, which provides, that "
it shall be lawful for any defendant, or tenant, in any action or suit,
or for any plaintiff in replevin, in any court of record, with leave of
the court to plead as many several matters thereto as he shall think
necessary for his defence."
6. This provision, or a similar one, is in force, probably, in most of the states of the American Union.
7.
Under this statute, the defendant may, with leave of court, plead as
many different pleas in bar, (each being a single,) as he may think
proper; but although this statute allows the defendant to plead several
distinct and substantive matters of defence, in several distinct pleas,
to the whole, or one and the same part of the plaintiff's demand; yet,
it does not authorize him to allege more than one, ground of defence in
one plea. Each plea must still be single, as by the rules of the common
law. Lawes, Pl. 131; 1 Chit. Pl. 512.
8.
This statute extends only to pleas to the declaration, and does not
embrace replications, rejoinders, nor any of the subsequent pleadings.
Lawes, Pl. 132; 2 chit. Pl. 421; Com. Dig. Pleader, E 2; Story's Pl. 72,
76; 5 Am. Jur. 260-288. Vide) generally, 1 Chit. Pl. 230, 512; Steph.
Pl. c. 2, s. 3, rule 1; Gould on Pl. c. 8, p. 1; Archb. Civ. Pl. 191;
Doct. Pl. 222; 5 John. 240; 8 Vin. Ab. 183; U. S. Dig. Pleading, II. e
and f.
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